Opinion
15091.
APRIL 3, 1945. REHEARING DENIED MAY 8, JUNE 7, 1945.
Equitable petition. Before Judge Porter. Floyd superior court. November 17, 1944.
James Maddox, for plaintiffs in error.
Lanham Parker and Matthews, Owens Maddox, contra.
1. Where a deed fixes the northern boundary of a tract of land as the "Alabama and Cave Spring public road," the legal effect of such description, in the absence of a contrary intention being manifested in the instrument, is, that the road open and actually in use by the public is the road intended by the parties, rather than the site of an old road. The language, being unambiguous, can not be aided by extrinsic evidence to extend the boundary to the old road site, the sole remedy for such purpose being reformation of the deed. Although the petitioner prayed for reformation, there was no evidence to show any mutual mistake of the grantor and the grantee, and, reformation being a prerequisite to the relief sought, the verdict in her favor was unauthorized.
The court did not err in charging, immediately in connection with instructions as to the preponderance-of-evidence rule and the credibility of the witnesses and as to the treatment of any conflict in the evidence, that, "You, the jury, are the exclusive judges of the evidence and of the weight of the evidence. It is a question for the jury to say who they will believe and what they will believe, and it is a matter with which the court has nothing whatsoever to do; and in that connection I charge you that if the court should inadvertently express any opinion as to what has or has not been proven you will disregard that altogether."
To that part of the answer of the administratrix of the estate of the petitioner's grantor seeking to recover $1000 as the consideration of the deed executed to the petitioner on August 19, 1938, and alleged not to have been paid by the petitioner, who was alleged to be a resident of the State of New York, the court properly sustained the petitioner's demurrer on the ground that the alleged debt was barred by the statute of limitation of four years, the allegations, construed most strongly against the pleader, showing that the petitioner was a nonresident before the debt was incurred, and the Code, § 3-805, as to tolling the limitation where one has removed from the State after a debt has been incurred, not being applicable.
The court did not err in overruling the administratrix's motion to be dismissed as a party defendant, since, in order to obtain reformation of the deed as prayed for by the petitioner, the administratrix of the estate of her grantor was a necessary party defendant.
No. 15091. APRIL 3, 1945. REHEARING DENIED MAY 8, JUNE 7, 1945.
Under a deed conveying lands as being located "on the south side of the Alabama and Cave Spring public road" in the 3d district and 4th section of Floyd County, Georgia, Miss Aurelia Rackley filed in the superior court of Floyd County a petition for injunction against Jeter Miller and Mrs. Maud Welch, seeking to enjoin them from trespassing upon a certain five-acre portion of said tract. The defendants answered and denied that the petitioner held title, which title they alleged to be in Mrs. Beatrice M. Hernandez for whom they were acting. Mrs. Hernandez intervened and alleged that the defendants were her agents and representing her in their acts, and that she held title to the lands under a deed subsequently executed by the same grantor who conveyed to the petitioner, the lands in Mrs. Hernandez's deed being described as being "north of the paved highway leading from Cave Spring to Center, Alabama;" and she prayed that the petitioner be enjoined from interfering with her possession or exercising any acts of ownership. The petitioner amended her petition by alleging that at the time the common grantor executed the deed to her he instructed the attorney who prepared the deed that he was desirous of conveying to her all of the lands described in the deed under which he held title; but, through ignorance of the fact that the road had been changed so as to run south of its original location, he used the same description as in the deed which had been executed to her grantor. She alleged that she believed that the description in the deed from her grantor, E. R. Minhinnette, to herself, in that it refers to the Alabama and Cave Spring public road, really expresses, if properly construed, the intention of the grantor; but, in view of the fact that the new paved highway is referred to as the "Alabama-Cave Spring Paved Highway" or "public highway," the intention of the grantor and herself is left somewhat ambiguous; and therefore the said deed should be reformed so as to more clearly express what was the evident intention of both the grantor and herself by inserting the word "old" before the words "Alabama and Cave Spring Road." She prayed in the amendment that Mrs. Maud Welch as administratrix of the estate of E. R. Minhinnette, deceased, be made a party defendant, and that the deed to the petitioner be reformed to more clearly express the real intention of the grantor and herself as to the property conveyed to her. Mrs. Maud Welch, as administratrix of the estate of E. R. Minhinnette, deceased, was made a party defendant, and filed an answer setting up that at the time of his death E. R. Minhinnette was in possession of and owned a described eastern portion of the tract to which the petitioner asserted title, and by his deed to the petitioner her intestate did not intend to convey any land north of the present paved highway leading from Cave Spring, Georgia, to Center, Alabama. She prayed that the petitioner's prayers be denied, and that she, the administratrix, have judgment against the petitioner for $1000 as the purchase-price of the lands deeded to her on August 19, 1938, which amount had not been paid by the petitioner, who was alleged to be a resident of the State of New York, and that she have and recover the portion of the tract to which she asserted title. The petitioner demurred to the answer of Mrs. Maud Welch, as administratrix, on several grounds, one of which was that the claim asserted by her for $1000 was barred by the statute of limitations of four years. The court sustained this ground of the demurrer, and Mrs. Welch, as administratrix, filed her exceptions pendente lite, duly certified. Mrs. Welch, as administratrix, also filed a written motion to be dismissed as a party defendant, on the ground that the petition did not show that the petitioner was entitled to the relief sought against her. The court overruled the motion, and Mrs. Welch, as administratrix, filed exceptions pendente lite, duly certified.
It was conceded by the parties that, under the deed to the common propositus, he held title to all of the lands south of the old road, and that, prior to the conveyance to the petitioner, a new and paved highway had been constructed south of the old road, the property in dispute being north of such new road and south of the old road. There was testimony on the trial of the case as to possession of the five acres in dispute, by agents of the petitioner and also of Mrs. Hernandez, and conflicting testimony as to whether Minhinnette, after deeding to the petitioner, remained in possession for her or otherwise. The respective deeds to the petitioner and Mrs. Hernandez were in evidence, but only the description of the property conveyed by each deed, together with the dates of the deeds, is set forth in the brief of the documentary evidence, the descriptions of the roads varying as hereinbefore mentioned. As to the old road, the testimony was substantially as follows: Even before the execution of the deed to the petitioner in 1938 it had been fenced for Minhinnette's yearlings. The only part left was a very short part that "leads to the house." A barbed wire had been run across the road, preventing its use except through a gate. It was full of ditches. It can not be used except in going to the fields. Part of the road is practically washed away. It could be used in a limited way, but, generally speaking, has been abandoned and has not been worked by the county, the State, or anybody, or used by the public as a road, though some people occasionally crossed it.
The court instructed the jury as to consideration of the evidence introduced by the petitioner as to her contention that it was the intention of Minhinnette and herself that all of the property held by him south of the old road be conveyed to her, and that, "If you find that she is entitled to recover the property referred to as between the old and the new or paved Cave Spring and Center, Alabama, roads, and that these parties should be restrained from interfering with her, and that title to this property be decreed in her, then the form of your verdict would be: `We, the jury, find in favor of the plaintiff,' which would mean" that she would be entitled to recover the property to which she asserted title, and the defendants would be enjoined from interfering with her possession, and title be decreed in her. The court also instructed the jury as to the conditions under which a verdict might be returned in favor of Mrs. Hernandez and in favor of Mrs. Maud Welch, as administratrix of the estate of E. R. Minhinnette, deceased, as to their respective claimed portions of the land between the two roads. The jury returned a verdict reading: "We, the jury, find for the plaintiff." The defendants filed a motion for new trial on the general grounds, and by amendment added several special grounds. The court overruled the demurrers, and in the bill of exceptions error is assigned on the judgment overruling the motion for new trial; and Mrs. Maud Welch, as administratrix, assigns error on her exceptions pendente lite to the judgment sustaining the petitioner's demurrer to that part of her answer in which she sought to recover $1000 as the purchase-price of the lands conveyed to the petitioner, and to the judgment overruling her written motion to be dismissed as a party defendant.
1. In seeking injunction and other relief in the present case, the petitioner alleged that she believed that the description in her deed, referring to the Alabama and Cave Spring public road as the northern boundary of the lands conveyed, really expressed the intention of the grantor that the old road was intended as such boundary, but she nevertheless prayed that the deed be reformed to more clearly express the real intention of the parties by inserting the word "old" before the words "Alabama and Cave Spring public road."
If the description is ambiguous but sufficient to furnish a key to the boundary, extrinsic evidence may be used to correctly apply the description to the true boundary intended by the parties. Hulsey v. Clark, 49 Ga. 99; Tumlin v. Perry, 108 Ga. 520 ( 34 S.E. 171); Walden v. Walden, 128 Ga. 126 (2) ( 57 S.E. 323); Morris v. Beckum, 145 Ga. 562 (3) ( 89 S.E. 704); Tilley v. Malcolm, 149 Ga. 514 (3) ( 101 S.E. 127); Stanaland v. Horne, 165 Ga. 685 (4) ( 142 S.E. 142); Reeves v. Whittle, 170 Ga. 408 (3) ( 153 S.E. 53, 72 A.L.R. 405); Gould v. Gould, 194 Ga. 132, 135 ( 21 S.E.2d 64). If the description is unambiguous, extrinsic evidence can not be resorted to except for the purpose of reforming the deed so as to make it express the real intention of the parties and correct a mutual mistake of fact. Hall v. Davis, 122 Ga. 252 ( 50 S.E. 106); Bell v. Redd, 133 Ga. 5, 8 (3) ( 65 S.E. 90); Harris v. Brandon, 135 Ga. 131 ( 68 S.E. 1040); Thompson v. Hill, 137 Ga. 308 (3) ( 73 S.E. 640); Gabbett v. Hinman, 137 Ga. 143, 146 ( 72 S.E. 924). See also the Code, §§ 37-206, 37-207.
Is the language here involved, the "Alabama and Cave Spring public road," ambiguous or unambiguous? Where a road is referred to in a conveyance as a boundary, the road as open and actually used as a public road at the time of the conveyance, rather than as it formerly existed, is to be taken as the boundary intended by the parties, unless, of course, a contrary intention is manifested by the instrument, to determine which all of the language of the deed may be looked to. See Johnston v. Palmetto, 139 Ga. 556 (2) ( 77 S.E. 807); 11 C. J. S. 587, § 35 (4); 6 Thompson on Real Property (Perm. ed.), 627, § 3414, citing decisions from many States, including the Georgia case, supra. The application of this rule treats the description as in law unambiguous, and thus excludes any showing as to what the parties may have intended as the boundary, since such evidence will never be allowed to control the legal effect of a deed. Thompson v. Hill, supra; 6 Thompson on Real Property (Perm. ed.), 454, § 3280. The sole remedy, therefore, is reformation. As was said in Shahan v. Watkins, 194 Ga. 164, 166 ( 21 S.E.2d 58), where it was sought to show that, although a deed conveyed an entire lot, the intention was to except a portion thereof: "It is urged that these deeds [previous deeds relating to the lot] show that it was the intention of the defendant's father to except from lot 168 the three-acre tract here involved. While such might have been the intention of the parties, this intention could not be carried into effect by merely describing the lot as containing 157 acres, more or less, instead of 160 acres, more or less, as it had been described in previous deeds. As written the deed purported to convey the entire lot. If the deed did not express the intention of the parties, reformation should have been sought." It was further said in the Shahan case, quoting from Compton v. Cassada, 32 Ga. 428: "Titles to land can not be created by mere verbal declarations of this character without overturning the statute of frauds;" and it was also said, "The deed to the petitioner's father having conveyed to him the entire lot, he could not effectually limit the description of the deed by mere oral admissions."
The evidence compels the view that the old road had been abandoned in 1928, and that a new paved highway on the south thereof had become the only Alabama and Cave Spring public road actually in use by the public at the time of the execution of the deed to the petitioner in 1938. This being true, it necessarily follows from the authorities above discussed that the description here involved is in law unambiguous, and means that the new paved highway, and not the old road, must be taken as the northern boundary of the lands conveyed. The record is silent as to any mutual mistake of the parties as to the boundary expressed in the petitioner's deed and hence there was no basis for reformation of the instrument. Reformation being a prerequisite to the relief sought, the verdict in favor of the petitioner was unauthorized.
2. Special ground 4 complains that the court erred in charging the jury as follows: "You, the jury, are the exclusive judges of the evidence and the weight of the evidence. It is a question for the jury to say who they will believe and what they will believe, and it is a matter with which the court has nothing whatsoever to do, and in that connection I charge you that, if the court should inadvertently express any opinion as to what has or has not been proven, you will disregard that altogether," it being contended that thereby the court erroneously instructed the jury that they could arbitrarily reject any and all evidence without any reason for so doing. The court fully charged the jury as to the preponderance-of-evidence rule and the credibility of the witnesses and as to their treatment of any conflict in the evidence, immediately in connection with the portion objected to. No error is shown. Quinton v. Peck, 195 Ga. 299 (4) ( 24 S.E.2d 36). Special ground 5 involves substantially the same objection and is controlled adversely to the movant by the above ruling. No rulings are made on the other special grounds of the motion for new trial, since the rulings in division 1 of this opinion fix and determine the issues in the case, and it is unlikely that the questions involved in such special grounds will be raised upon another trial.
3. To that part of the answer of Mrs. Maud Welch, as administratrix of the estate of E. R. Minhinnette, deceased, seeking to recover $1000 as the consideration of the deed executed to the petitioner on August 19, 1938, by the intestate and alleged not to have been paid by the petitioner, who was alleged to be a resident of the State of New York, the petitioner demurred on the ground that the debt was barred by the statute of limitation of four years. Error is assigned on the judgment sustaining the demurrer, it being contended that as the petitioner was a resident of the State of New York the statute did not run. The claim here involved was barred after four years from August 19, 1938. Code, § 3-711. The statute upon which the administratrix evidently relies, § 3-805, providing that, "If the defendant, in any of the cases herein named, shall remove from this State, the time of his absence from the State, and until he returns to reside, shall not be counted or estimated in his favor," has no application here. The basis for the saving provision is, of course, inability to bring suit in this State because of the temporary absence of the debtor. To come within the words of the statute, the defendant must have been a citizen of this State at the time of the accrual of the debt and subsequently have removed from the State. See Pare v. Mahone, 32 Ga. 253, 255. Construing the allegations most strongly against the pleader, the petitioner was a nonresident, and no case of removal from the State of a debtor after incurring an obligation is presented. The statute as to tolling the limitation is not applicable, and the court did not err in sustaining the petitioner's demurrer. The answer of Mrs. Welch, seeking to recover $1000 as the purchase-price of the land deeded by her intestate to the petitioner, does not attach a copy of the deed or set forth the substance of any of its provisions; and cases like Stansell v. Corley, 81 Ga. 453 (2) ( 8 S.E. 868), Kytle v. Kytle, 128 Ga. 387 (3) ( 57 S.E. 748), Whittle v. Nottingham, 164 Ga. 155 (4) ( 138 S.E. 62), Persons v. Dallas, 178 Ga. 778 ( 174 S.E. 699), and Brice v. National Bondholders Corp., 187 Ga. 511 (2) ( 1 S.E.2d 426), holding that in the circumstances there dealt with suit might be brought within 20 years on a contract under seal, can not be applied here in passing upon the sufficiency of the allegations against demurrer.
4. The assignment of error on the judgment overruling the written motion of Mrs. Maud Welch, as administratrix, to be dismissed as a party defendant is obviously without merit, since, in order to obtain a reformation of the deed executed to the petitioner, the administratrix of the estate of the grantor was a necessary party defendant.
Judgment reversed. All the Justices concur, except Bell, C. J., and Grice, J., who dissent.